KALYANSINGH LAHURSINGH CHATTRI Vs. HORILAL BHAIYARAM BANI AND

JUDGEMENT

(1.) THE appellants are the mortgagees. Kalyansingh and Tiloksingh are original mortgagees. Nainsingh and Dukharansingh are the minor sons of Tribhuwansingh (deceased), the third mortgagee. They obtained a preliminary decree for foreclosure on 13th December 1935, in civil Suit No. 15-A of 1935, in the Court of the Subordinate Judge, First Class, Bilaspur, against the respondents-mortgagors, on the basis of the mortgage deed, dated 16th February 1926. The amount payable under the decree was Rs. 7186-0-0. The date fixed for payment was 13th June 1936. The property mortgaged was the four annas share of mauza Tifra, tahsil and district Bilaspur. On 10th July 1936, the appellants decree-holders applied for making the decree final. After the application of the decree-holders for making the decree final, the debtors filed an application before the Debt Conciliation Board, Bilaspur, for settlement of their debts. A certificate was sent by the Board to the civil Court which stayed the proceeding before it.

(2.) ON 3rd December 1936, the Chairman, Debt Conciliation Board, by a notice, directed the creditors to submit to the Board a statement of debts in writing on or before 20th February 1937, and it stated that the Board will scrutinize the statement at 11 A.M. on 20th February 1937 when the creditors were to appear before the Board. In a subsequent portion of the notice, intimation was given that the settlement will take place at Bilaspur on 3rd March 1937. The notice was under Section 8(1), Debt Conciliation Act, 1933 (2 of 1933) in Form No. IV. Under Rule 16 framed under the Act, a copy of the notice has to be served on each known creditor. It has to be posted on the district and tahsil office notice boards and the notice board of the Board's office. A copy has to be posted in a conspicuous place in the village where the debtor ordinarily resides and all the villages within the area for which the Board has been appointed where any holding or land of the debtor or any part thereof is situate. Under Rule 17, every notice has to be served either by tendering or delivering a copy thereof or sending such copy by registered post to the creditor on whom it is to be served or his authorized agent, or if service in the manner aforesaid cannot be made, by affixing a copy thereof at his last known place of residence. The notice of the application was not served on each individual creditor; nor was it sent by a registered post. There was not even a; joint notice which was served on the creditors or sent by registered post to them. It appears that the process-server went to Mauza Mulmula the place of residence of the creditors and affixed it at the gudi. Another notice was affixed at the gudi in Mauza Tifra. A proclamation by beat of drums was made at Mauza Tifra. The creditors Nainsingh and Dukhransingh were minors. Rule 47 of the rules under the Debt Conciliation Act is in these terms: In every case in which a debtor or a creditor is a minor or a person of unsound mind, the Board and the parties concerned shall, so far as may be, follow the procedure laid down in Order 32 of Schedule 1, Civil P.C. 1908. No steps were taken to comply with the provisions of Rule 47, Debt Conciliation Act, or of Order 32, Civil P.C. No guardian of the minors was appointed as required by the rule and the provisions of Order 32, Civil P.C.

(3.) ON 5th June 1937 it is noted, creditor "Kalr yansingh present. His debt was discharged." On 2nd September 1937 Kalyansingh was present before the board. It is noted in the order-sheet that: Creditor Kalyansingh in person. Creditors Tiloksingh, Nainsingh and Dukharansingh are absent. The debts due to these persons had already been ordered to have been deemed to be discharged under Section 8(2), Debt Conciliation Act, by the board. The creditors case was that they came to know of the order of discharge on 2nd September 1937 and they did not know that the debt had been discharged on 6th May 1937. On 29th September 1937 the appellants applied to the board for review of their previous order and for cancellation of the order discharging their debts. On 8th December 1937 the board which was presided over by another Chairman passed the following order: ... The order of discharge of the debt was passed by the previous board and the present board does not think it proper to sit in appeal or to review the order passed by the previous board. This board refuses to interfere. The applicants may seek their remedy in the civil Court.